The Unconstitutionality of the Media “Council”

Mona Nader[i]

Media regulation was a theme in the declaration of July 3 and an important pivot in the amendments to the constitution. In this regard, we witnessed a set of media gains. For instance, Article 71 of the constitution prohibited any form of censorship in the press, or its confiscation, suspension, or closure. Most significantly, we saw the formation of three agencies regulating the media: the Supreme Media Council, the National Journalism Agency, and the National Media Agency (see Articles 211, 212, and 213).

Certainly, the laws regulating these three bodies should be the focus of a broad media and societal debate, before they are passed by the incoming parliament. In this context, some media outlets have offered a space for this debate, and presented proposed guidelines to regulate those media bodies. However, in all cases the proposals referred to regulations for what they have called the “National Media Council.” It is not clear to which of the three constitutionally mandated bodies this “council” refers, since it seems to mix up the names and combine prerogatives from all three.

Aside from the issue of naming, a quick glance at the most recent proposed laws for the regulation of this “council” makes it undeniably clear that the drafters have not even a passing familiarity with the constitution. Their proposals include a constitutional error—perhaps intentional—that revives fears associated with the most significant laws recently issued or proposed—the protest law and the NGO law—which adopt a statutory policy and practices that show contempt for the constitution, as if that document were merely a cosmetic fixture for foreign consumption, worthless locally.

The first proposal was presented by Mustafa Abd al-Wahab, the vice-president of regional channels, published in al-Watan on August 15. Leading experts quickly criticized it. Journalist Salah Eissa, one of the fifty members of the constituent assembly that drafted the constitution, wrote in al-Masry al-Youm that Abd al-Wahab’s proposed law represented a tool for restricting the media, not emancipating it, laying out in detail the constitutional and media shortcomings in the proposal.

More than this, the proposal treats the state-owned and private media as one unit, although they logically have different obligations, both in terms of administration and finance and mission. The national, state-owned media is obligated to give expression to the interests of taxpayers without bias or favoritism and regardless of the competitive market, capital laws, and the political and economic interests of the owners of private media. This is the underlying justification for the distinction made in the constitution, which designated national agencies to regulate the state-owned media and a supreme council to regulate private media.

Moreover, the proposal makes no distinction between visual and print media, although the two different media require different forms of regulation and oversight. This is in addition to the electronic media, which is now added to any new proposal for media regulations without the slightest awareness of the impossibility of subjecting it to the standards and rules set forth in these proposed laws.

Under the proposed law, the “council” sets standards for the media’s mission (the proposal does not specify who will draft these or on what basis) and monitors media compliance with them (the law does not specify whether this is based on a system of complaints or the existence of a permanent observatory under the council to document violations). As such, the council will determine sanctions for offenders (the proposal contains no mention of standards used to define the sanctions or the need for them to be proportional to the offense). After all of this, there is no platform for objections, appeals, or self-defense: the bill provides for nobody before which a media outlet may appeal the council’s unconstitutional sanctions, which range from escalating fines (the bill sets no minimum or maximum), to the suspension of the program or channel, to the refusal to renew the license or permit in the event of a repeat offense—a violation of Article 71 of the constitution.

The second proposal was presented by Hassan Ali, a professor of media at Minya University, and published in al-Masry al-Youm on August 19. It differs little from the aforementioned proposal, either in its underlying philosophy of control and punishment or in the scope of the “council’s” purview, which covers all types of media of all ownership models. The two bills differ slightly in the number of council members, the manner of their selection, and the bureaucratic details of the sectors and committees subordinate to the council (15 or more if necessary), but offer no explanation of how to distinguish their overlapping prerogatives. This is in addition to an alarming expansion of the council’s authorities, which usurp the prerogatives of the professional syndicates and professional training and instruction institutions. They even impinge on the authorities of the administration of media institutions themselves, which is impossible to imagine in practice when it comes to private media institutions.

The two bills concord on two significant points. Under both, the “council” has the right to suspend a media outlet’s license or suspend its operation, in violation of the constitution. This can be done, firstly, in the event of non-payment of fines (which the second bill sets as no less than LE100,000 and no more than LE300,000), or, secondly, if the licensed outlet refrains from enabling the council to adjudicate a complaint filed against it. Neither bill provides an explanation for this vague provision.

Both bills give the “council” the right to issue licenses and permits to all media outlets, although Article 70 of the constitution states that newspapers may begin publication simply following notice of establishment. The law shall regulate only the establishment and ownership of radio and television channels and electronic newspapers.

In both bills, the council is constituted through both election and appointment, but neither sets forth the method of elections, the parties with the right to run for a seat, or the parties with the right to vote. No bases or standards are set forth for appointment (or representation) as well.

Finally, both bills affirm the independence of the “council” in the first sentence, yet the president of the council is appointed by the president of the republic and the appointment of members, the determination of salaries, and membership terms are to be set through a decree from the prime minister. The council’s affairs are to be administered by a board that includes a representative of the Interior Ministry, a representative of Homeland Security, and a deputy chief judge of the State Council. In one of the proposals, the president of the council is elected in an undefined way, but the council’s decisions are ratified by the prime minister. The council itself is subordinate to the parliament, and half it members come from outside the media sphere.